The Supreme Court cast doubt Tuesday on the future of affirmative action at the nation’s colleges and universities, agreeing to hear an appeal from a white student in Texas who seeks an end to "racial preferences" in college admissions.

The decision could either limit the use of affirmative action or broadly forbid using race as an admissions factor.

However, because the court’s calendar is filled through the spring, the court will not hear arguments in the case until October, weeks before the presidential election.

The Obama administration could choose to weigh in on the issue, but it need not do so. The court’s intervention nonetheless is an ominous sign for defenders of affirmative action. Justice Elena Kagan also announced she will not take part in the decision.

The court has been closely split on affirmative action since 1978. By a 5-4 vote then, the justices said universities may consider a minority student’s race as a plus factor when choosing new students so as to bring about more diversity in the class. Eight years ago, the court reaffirmed that view in a 5-4 opinion written by Justice Sandra Day O’Connor. The dissenters included Justice Anthony Kennedy.

Not long afterward, O'Connor retired and was replaced by the more conservative Justice Samuel A. Alito Jr. In 2007, he joined an opinion by Chief Justice John G. Roberts Jr. that forbids school districts from assigning students to elementary or high schools for the purpose of creating a better racial balance. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts said.

The new case, Fisher vs. University of Texas, gives the Roberts court its first opportunity to rule on the constitutionality of affirmative action in higher education.

Five justices are on record opposing "racial balancing" policies. They include Justices Antonin Scalia and Clarence Thomas, in addition to Roberts, Alito and Kennedy.

But the Texas case also arises in an unusual circumstance which could limit the significance of the court’s ruling.

In 1997, the Texas Legislature adopted the so-called "Top Ten" plan for choosing new students. As such, the University of Texas was told to accept the top 10% of the graduates from all the state’s high schools. The goal was to maintain racial and ethnic diversity in the freshman class without using race as a factor.

The plan appeared to work. By 2004, 21% of the entering students at the Austin campus were black or Latino, a higher percentage than when the university had used race-based affirmative action.

After the high court endorsed continued affirmative action through O’Connor’s opinion, Texas university officials announced they would again give a preference to "underrepresented minorities" beyond those who were admitted under the "Top Ten" policy. In 2007, the university announced a "record high" number of entering black and Latino students, who made up about 26% of the freshman class.

In 2008, Abigail Fisher was turned down for admission to the University of Texas. Her grades were not good enough to put her in the top 10% of her class, but she said her tests and grades "exceeded those of many of the admitted minority candidates." She sued, alleging racial discrimination in violation of the Constitution’s guarantee of equal protection of the laws.

She lost before a federal judge and the U.S. 5th Circuit Court of Appeals, which said it was bound to follow O’Connor’s opinion from the University of Michigan law school case.

Her appeal argues that the 14th Amendment "requires an admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest" in having some racial diversity. Since the University of Texas had already achieved diversity through the use of its "Top Ten" policy, it had no need to use race as an admissions factor, Fisher’s lawyers argued.

Texas state lawyers had strongly urged the court to turn away the appeal. They said Fisher was about to graduate from Louisiana State University and that her case would soon be moot.

But after considering it over two weeks, the court said Monday it had voted to hear her appeal.

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XAVIER ALVAREZ is a liar. Even the brief filed on his behalf in the United States Supreme Court says as much: “Xavier Alvarez lied.” It informs us that he has told tall tales about playing hockey for the Detroit Red Wings, being married to a Mexican starlet and rescuing the American ambassador during the Iranian hostage crisis. But as the brief reminds us, “none of those lies were crimes.”

Another of his falsehoods, however, did violate the law. In 2007, while introducing himself at a meeting of a California water board, he said that he was a retired Marine who had been awarded the Medal of Honor (both lies). He was quickly exposed as a phony and pilloried in the community and press as an “idiot” and the “ultimate slime.”

But his censure did not end there. The federal government prosecuted him under the Stolen Valor Act, which prohibits falsely claiming to have been awarded a military medal, with an enhanced penalty (up to a year in prison) for claiming to have received the Medal of Honor. Mr. Alvarez was convicted but appealed to the United States Court of Appeals for the Ninth Circuit, which held that the act violated the First Amendment.

The government has taken the case to the Supreme Court, which is scheduled to hear arguments this week. The question before the court is not whether there is a constitutional “right” to lie. Rather, it’s a question about the scope of the government’s power over individuals — whether the government can criminalize saying untrue things about oneself even if there is no harm to any identifiable person, no intent to cheat anyone or gain unfair advantage, no receipt of anything of value and no interference with the administration of justice or any other compelling government interest.

The court should rule in favor of Mr. Alvarez. Harmless fibbing should not be a federal offense.

The Justice Department argues that the Stolen Valor Act serves an “important” government interest: preserving the integrity and credibility of the military medals program. False claims, it maintains, dilute the reputation and meaning of the medals.

But the government has offered no evidence that lies by crackpots like Mr. Alvarez have in any way damaged the honor or prestige of medal recipients. A few instances of dubious characters lying about medals does not require the government to deploy the heavy artillery of criminal sanction. The United States has had military medals since the Revolutionary War, but the founding fathers didn’t seem to think such legal protection was necessary, and neither did Congress until 2006, when it passed the act.

Nor has the government shown that the law is necessary and narrowly tailored to protect any valid government interest. Those who lie about being awarded medals could easily be exposed if the government maintained an online database of medal awardees; the government could even shame known liars by publicizing their names.

The Stolen Valor Act is also dangerously broad: it puts satire and parody at risk of criminal prosecution. The comedian Stephen Colbert could not safely perform a skit in which his blowhard patriot persona claimed to have a medal. The act doesn’t require proof that anyone believed or was deceived by the false claim.

If the Supreme Court were to accept the government’s argument, other disconcerting legislation could easily follow. Congress could enact a law that criminalized false claims by political candidates about their qualifications for office, or false claims about their opponents. Surely the government has an “important” interest in preventing voter deception. But as much as we want to encourage factual accuracy in our politicians, do we really want the government to prosecute, for example, Senator Marco Rubio, the Florida Republican who falsely stated on his Senate Web site that his parents moved from Cuba after — rather than before — Fidel Castro took power? Who among us has not said things about ourselves that are untrue? Who has not exaggerated or embellished details to tell a better story?

The public humiliation that follows such exposure is punishment enough. The recognized constitutional remedy for false speech, as Justice Louis D. Brandeis famously said, is not suppression but “more speech.” The court should reject Congress’s attempt to police what we are allowed to say about ourselves.

William Bennett Turner teaches a course on freedom of speech at the University of California, Berkeley, and is the author of “Figures of Speech: First Amendment Heroes and Villains.”

Good constitutional discussion over on gay issues thread. This part in particular by bigdog is noteworthy.

"I think "the people" do have a say. First, they elect (sort of, at least ) the president who nominates. Second, they elect the senators who confirm. Third, they have the ability, especially through interest groups or other bodies, to file amicus briefs with the Court. Fourth, federal judges are appointed for life... with good behavior. There is an impeachment mechanism in place, if "the people" were willing to push it. Fifth, as noted elsewhere, Congress can change (appellate) jurisdiction. The people could push for that."

When I read the quote of Justice Ginsburg preferring the South African constitution to ours, it made me think of impeachment. Not for her own freedom of speech but if any of her Court opinions were derived from some standard other than the U.S. constitution.

Our ongoing criticisms and second guessing of court decisions as I see it is our way of staying active and informed. The say that the people have on the court through the selection process has been my first answer to anyone who says there is no difference between the parties or the candidates. There is quite a difference it seems to me between the appointees of Bush versus Obama even though Justices often surprise or disappoint.

I remember that a major, public, conservative uproar brought down the Harriet Miers appointment of Pres. Bush. There was a smaller conservative protest to Pres. Reagan's selection of Arizona moderate Sandra Day O'Connor that perhaps should have been heeded.

The subject of free exercise of religion has been on many people's minds due to Obamacare regs requiring that those opposed to birth control and abortion, including those whose religion teaches them to be wrong, to pay for the birth control of others.

In the ensuing discussions many bandy about the phrase about a wall that separates church and state. The phrase comes from something Thomas Jefferson wrote in a letter and is frequently misunderstood. When Jefferson was alive we need to remember that the Bill of Rights applied only to the federal government!-- and had not yet been incorporated in whole or part to the various states. This is why, for example, the Heller decision was so important; because it was an appeal of the law of Washington DC, a federal territory, it allowed the question of whether the second amendment was an individual right to be squarely presented. It took another decision, the name of which slips my mind, against the City of Chicago to hold that the second applied to the States. With that in mind, read the following by Jefferson and note the role he envisions for religion in the public sphere of the States.

""I consider the government of the United States as interdicted by the constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the general government. It must then rest with the States." --Thomas Jefferson, letter to Samuel Miller, 1808"

Given the role of religion in the State constitutions and practices at the time the First Amendment was passed restricting the FEDERAL government, it is not clear to me what the analysis was/is/became upon the incorporation of the First.

CNN’s John King did his best the other night, producing a question from one of his viewers:

“Since birth control is the latest hot topic, which candidate believes in birth control, and if not, why?”

To their credit, no Republican candidate was inclined to accept the premise of the question. King might have done better to put the issue to Danica Patrick. For some reason, Michelle Fields of the Daily Caller sought the views of the NASCAR driver and Sports Illustrated swimwear model about “the Obama administration’s dictate that religious employers provide health-care plans that cover contraceptives.” Miss Patrick, a practicing Catholic, gave the perfect citizen’s response for the Age of Obama:

“I leave it up to the government to make good decisions for Americans.”

That’s the real “hot topic” here — whether a majority of citizens, in America as elsewhere in the West, is willing to “leave it up to the government” to make decisions on everything that matters. On the face of it, the choice between the Obama administration and the Catholic Church should not be a tough one. On the one hand, we have the plain language of the First Amendment as stated in the U.S. Constitution since 1791: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

On the other, we have a regulation invented by executive order under the vast powers given to Kathleen Sebelius under a 2,500-page catalogue of statist enforcement passed into law by a government party that didn’t even bother to read it.

Commissar Sebelius says that she is trying to “strike the appropriate balance.” But these two things — a core, bedrock, constitutional principle, and Section 47(e)viii of Micro-Regulation Four Bazillion and One issued by Leviathan’s Bureau of Compliance — are not equal, and you can only “balance” them by massively increasing state power and massively diminishing the citizen’s. Or, to put it more benignly, by “leaving it up to the government to make good decisions.”

Some of us have been here before. For most of the last five years, I’ve been battling Canada’s so-called “human rights” commissions, and similar thought police in Britain, Europe, and elsewhere. As I write this, I’m in Australia, to talk up the cause of free speech, which is, alas, endangered even in that great land. In that sense, the “latest hot topic” — the clash between Obama and American Catholics — is, in fact, a perfect distillation of the broader struggle in the West today. When it comes to human rights, I go back to 1215 and Magna Carta — or, to give it its full name, Magna Carta Libertatum. My italics: I don’t think they had them back in 1215. But they understood that “libertatum” is the word that matters. Back then, “human rights” were rights of humans, of individuals — and restraints upon the king: They’re the rights that matter: limitations upon kingly power. Eight centuries later, we have entirely inverted the principle: “Rights” are now gifts that a benign king graciously showers upon his subjects — the right to “free” health care, to affordable housing, the “right of access to a free placement service” (to quote the European Constitution’s “rights” for workers). The Democratic National Committee understands the new school of rights very well: In its recent video, Obama’s bureaucratic edict is upgraded into the “right to contraception coverage at no additional cost.” And, up against a “human right” as basic as that, how can such peripheral rights as freedom of conscience possibly compete?

The transformation of “human rights” from restraints upon state power into a pretext for state power is nicely encapsulated in the language of Article 14 of the Charter of Fundamental Rights of the European Union, which states that everyone has the right “to receive free compulsory education.” Got that? You have the human right to be forced to do something by the government.

Commissar Sebelius isn’t the only one interested in “striking the appropriate balance” between individual liberty and state compulsion. Everyone talks like that these days. For Canada’s Chief Censor, Jennifer Lynch, freedom of expression is just one menu item in the great all-you-can-eat salad bar of rights, so don’t be surprised if we’re occasionally out of stock. Instead, why not try one of our tasty nutritious rights du jour? Like the human right to a transsexual labiaplasty, or the human right of McDonald’s employees not to have to wash their hands after visiting the bathroom. Commissar Lynch puts it this way: “The modern conception of rights is that of a matrix with different rights and freedoms mutually reinforcing each other to build a strong and durable human rights system.”

That would be a matrix as in some sort of intricate biological sequencing very few people can understand? Or a Matrix as in the illusory world created to maintain a supine citizenry by all-controlling government officials? The point is, with so many pseudo-“rights” bouncing around, you need a bigger and bigger state: Individual rights are less important than a “rights system” — i.e., a government bureaucracy.

This perversion of rights is killing the Western world. First, unlike real rights — to freedom of speech and freedom of religion — these new freedoms come with quite a price tag. All the free stuff is free in the sense of those offers that begin “You pay nothing now!” But you will eventually. No nation is rich enough to give you all this “free” stuff year in, year out. Spain’s government debt works out to $18,000 per person, France’s to $33,000, Greece’s to $39,000. Thank God we’re not Greece, huh? Er, in fact, according to the Senate Budget Committee, U.S. government debt is currently $44,215 per person. Going by the official Obama budget numbers, it will rise over the next ten years to $75,000. As I say, that’s per person: 75 grand in debt for every man, woman, and child, not to mention every one of the ever-swelling ranks of retirees and disabled Social Security recipients — or about $200,000 per household.

So maybe you’re not interested in philosophical notions of liberty vs. statism — like Danica Patrick, tens of millions of people are happy to “leave it up to the government to make good decisions.” Maybe you’re relatively relaxed about the less theoretical encroachments of Big Government — the diversion of so much American energy into “professional services,” all the lawyering and bookkeeping and paperwork shuffling necessary to keep you and your economic activity in full compliance with the Bureau of Compliance. But at some point no matter how painless the seductions of statism, you run up against the hard math: As those debt per capita numbers make plain, all this “free” stuff is doing is mortgaging your liberty and lining up a future of serfdom.

I used to think that the U.S. Constitution would prove more resilient than the less absolutist liberties of other Western nations. But the president has calculated that, with Obamacare, the First Amendment and much else will crumble before his will. And, given trends in U.S. jurisprudence, who’s to say he won’t get his way? That’s the point about all this “free” stuff: Ultimately, it’s not about your rights, but about his.

I came into this thinking it is a gotcha story about liberal, anti-American media but really it is expressing a view held by many, including perhaps all liberals (?), many people who want a new constitutional convention, and at least 2 and maybe 4 Supreme Court Justices.------------------------------NYT Says 'Old' Constitution Outdated for Failing to Guarantee 'Entitlements' Like Health Care

Sorry, Founders: The "terse and old" U.S. Constitution has been ruled out of date by Supreme Court reporter Adam Liptak for failing to provide such "rights" as free health care.

Liptak made the front of Tuesday's New York Times "Sidebar" news analysis, "'We the People' Loses Followers," the paper's most e-mailed and viewed news story of the morning.

Liptak arrives at his judgment via a new study by two law professors. The analysis, at least after being filtered through Liptak's coverage, seems to hew to the liberal ideology of the Constitution as a "living document," (i.e. whatever a liberal wants it to mean), conflating genuine rights like freedom of religion with entitlements like free health care: "But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care."

Liptak wrote:

The Constitution has seen better days.

Sure, it is the nation's founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.

....

There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution's waning influence may be part of a general decline in American power and prestige.

In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. "Nobody wants to copy Windows 3.1," he said.

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. "I would not look to the United States Constitution if I were drafting a constitution in the year 2012," she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in "Our Undemocratic Constitution," "the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today." (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

....

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

Liptak failed to differentiate between rights retained by the people from the power of the government, like freedom of speech and religion, and entitlements, which are transfers of money and services established by government either via majority rule (i.e. voting) or judicial fiat. Examples include food stamps, welfare payments, and "free" health care.

Liptak turned up his nose at the right conservatives would say protects all the other ones, the Second Amendment:

It has its idiosyncrasies. Only 2 percent of the world's constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.)

Several "rights" enshrined by the Times via the study (shown in a separate graphic) need unpacking. What exactly does the generic phrase "Women's rights" entail? Access to abortion? And does "Freedom of Movement" include the "right" to other people's tax money in the form of welfare benefits, as the Supreme Court ruled in the late 1960s? Details from the University of Missouri-Kansas City School of Law: "Shapiro v. Thompson (1968) considered the constitutionality of a state law that established a one-year residency requirement for welfare recipients. The Court struck down the law, finding it a violation of the "right to travel" (really, more the right to migrate)."

When an federal appellate judge writes, it usually is worth paying attention. I must confess though that his argument about conservative efforts being a risk to the C. makes very little sense to me. I say this doing my sincere best to be fair, but I simply find his reasoning specious. No doubt BD will be able to flesh things out a bit.

OTOH I find his analysis of liberal threats to the C. as having merit. Again, I say this doing my sincere best to be fari.

CHARLOTTESVILLE, Va. BOTH liberals and conservatives have the American Constitution in the cross hairs. They assault the Constitution in their different ways, each with damaging effects on our nation. Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other. Liberals, when it suits them, embrace rights that have not been enumerated in the Constitution and cry for restraint only when their pet bills come under fire. The result is a national jurisprudence whetted by political appetite, with our democratic values as the victims.

Conservatives increasingly bemoan Congress’s power to regulate interstate commerce, as illustrated by the debate over the Affordable Care Act’s requirement that individuals buy health insurance. They argue that Congress can only regulate activity, not inactivity, and so when it gets involved in a decision by a consumer to not purchase health care, it is going far beyond its reach.

If only it were that simple.

As a political argument, that resonates: “Don’t Tread On Me” trumpets the imperishable spirit of American liberty. But as a constitutional argument, it would imbue judges with unprecedented powers to topple an exhaustively debated and duly enacted federal law and to make the determination that the decision not to buy ice cream can be neatly severed from the decision to buy chocolate or vanilla.

In curbing federal excess, courts risk lessening our national economic strength. That strength resides partly in the national aspects of our founding document, among them the now maligned commerce clause and the newly mistrusted supremacy clause, which gives preference to federal over state law when there is a conflict. States’ rights are important in many spheres, but the benefits of a national economic policy must also be considered. A vibrant economic order requires some political predictability, and the prospect of judges’ striking down commercial regulation on ill-defined and subjective bases is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.

It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.

Liberals are mounting their own, equally damaging, assault on the Constitution. They have forsaken the textual and historical foundations of that document in favor of judicially decreed rights of autonomy. It is one thing to value those rights our cherished Bill of Rights sets forth. But to create rights from whole cloth is to turn one’s back on law.

Just like the opponents of the Affordable Care Act, the proponents of reproductive choice and same-sex marriage have strong arguments — but they are political, not constitutional. What are the consequences when liberals shortchange democratic liberty in favor of judicial expansion of unenumerated personal rights? Well, for one, creating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts. In pushing a constitutional vision of autonomous individuals divested of location in larger social settings, liberals risk weakening the communal values and institutions that best afford our most disadvantaged the chance for a good life.

At a time of dismay over democratic dysfunction, the temptation to ask courts to supplant self-governance runs high. And yet when I look past the present debacle, and think of where democracy has brought this country, I would not lose faith. The risks of continuing our present constitutional course are grave. One faction risks damage to the nation at large, the other to the vital roles of smaller communities. All factions owe their fellow citizens the hope and the prospect of democratic change, not the message that their views have been constitutionally condemned and their opponents’ views carved in the stone of our founding charter. Restraint has much to commend it as a judicial value, not least of which is that it extends the hand of tolerance and respect to those whose views we may not share, but whose citizenship we do share and whose love of family, community and country burns no less brightly than our own.

J. Harvie Wilkinson III, a judge on the United States Court of Appeals for the Fourth Circuit, is the author of “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.”

A 12-year-old Minnesota girl was reduced to tears while school officials and a police officer rummaged through her private Facebook postings after forcing her to surrender her password, an ACLU lawsuit alleges.

A 12-year-old Minnesota girl was reduced to tears while school officials and a police officer rummaged through her private Facebook postings after forcing her to surrender her password, an ACLU lawsuit alleges.

As Guro has asked for a discussion of Judge Wilkinson's argument of conservatives undermining the Constitution, I will limit this reply to that area. First, it is important to recognize that Judge Wilkinson is highly regarded conservative judge. He was a clerk for Justice Powell, was nominated for his position by President Reagan and was interviewed as a potential USSC nominee by President George W. Bush.

Judge Wilkinson says: “Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other.” The first portion of this view is not in contention, I would guess. Several of the participants on the forum bemoan the role that judiciary plays or played in reproductive cases, eminent domain and elsewhere. Here it is important to have a definition of what constitutes judicial “activism.” However, a definition is difficult to find. Having looked at about a dozen books on my shelf, here is a sampling of the “definitions” or descriptions, but it is key to note that none of them limit activism to liberal jurists. Reporter Richard Willing described judicial activism as “what the other guy does that you don’t like.” In an effort to find more, I found one offered by Lawrence Baum (a serious judicial scholar at the Ohio State University), who says that “when judges choose to increase their impact as policymakers, they can be said to engage in activism.” Lee Epstein (a serious judicial scholar now at USC law school) and coauthor Thomas Walker state that “activist [judges] believe that that the proper role of the [c]ourt is to assert independent positions in deciding cases, to review the actions of other branches vigorously, to be willing to strike down acts the [judge] believes are unconstitutional…”. Taken together, these definitions make sense, of course. This is where I suspect Judge Wilkinson is coming from, especially as he notes the “debate over the Affordable Care Act’s requirement that individuals buy health insurance” and the erosion of longstanding understanding (read precedent) of the Interstate Commerce Clause.

I find this paragraph to be of interest: “It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.”

One the primary reasons why the presidency has expanded its power is because of the speed of the decision making, viz. Congress. Most people, liberal or conservative who accept the increasingly unitary presidency do so because they feel that the president can act more decisively, more quickly that the plodding legislature. For historic examples see: T. Jefferson and the Louisiana Purchase; A. Lincoln and the first few months of the Civil War; FDR and NIRA and others; etc. etc. These are not without limitation, such as W. Wilson and forgetting the Senate’s role in treaty making and H. Truman and the seizure of the steel industry, but the march seems to be ever forward. I think that Wilkinson is basically noting this, but in a different way. He is arguing that activist decisions (overturning precedent and congressional actions) devolve the economic prowess of the country, but returning the economies to the states in an increasingly global environment.

You know I have high regard for you, especially in this area, but I confess I just don't find this particular post very persuasive.

a) "Judge Wilkinson says: “Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other.” The portion of this view is not in contention, I would guess."

Umm , , , I DO contest

b) "“activist [judges] believe that that the proper role of the [c]ourt is to assert independent positions in deciding cases, to review the actions of other branches vigorously, to be willing to strike down acts the [judge] believes are unconstitutional…”. Taken together, these definitions make sense, of course. This is where I suspect Judge Wilkinson is coming from, especially as he notes the “debate over the Affordable Care Act’s requirement that individuals buy health insurance” and the erosion of longstanding understanding (read precedent) of the Interstate Commerce Clause."

Ummm , , , ever since Marbury isn't it precisely the job of a judge to defend the Constitution? How is doing so "activist"?!? Of course stare decisis deserves some respect, but the original intent of the ICC deserves even more.

“It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.”

I find this paragraph to be the most specious of all. How on earth is limiting the Congress to the powers set to it in the Constitution constitute making the Congress “ineffectual”?!? This makes no sense to me at all. There are matters pertaining to the jurisdiction of the States, and there are matters that are properly federal. This is on purpose and it is a good thing to have the competition of fifty laboratories of democracy in action.

“He is arguing that activist decisions (overturning precedent and congressional actions) devolve the economic prowess of the country, but returning the economies to the states in an increasingly global environment.”

Again, it is NOT activist to insist upon the Constitution. PERIOD. Not sure of the meaning of the second half of the sentence (or even if it IS a sentence ) but I gather he thinks the courts should let the Congress slip its constitutional leashes because he thinks it makes for international competitiveness and that those that disagree are conservative activists?!? This makes little sense to me.

I will close by giving a concise definition of judicial activism: It is the substitution of your own opinion for the law.

1. I meant to write "first portion," which is " Conservatives attack the courts." And I do doubt this is under contention.

2. I am not writing about my beliefs, Guro. I am trying to divine what Judge Wilkinson says, based on the article you posted and the little I know about him. I was guessing based on the article, primarily, because the little I do know about likely dwarfs what most others know. SO, based on the context of a 750 word article.

3. The original intent, as we have discussed before, is difficult to divine. I do not know how Wilkinson views original intent, though I suspect his book which I would like to read, sheds some light on this.

4. Why since Marbury? And talk about judicial activism!

5. "I gather he thinks the courts should let the Congress slip its constitutional leashes because he thinks it makes for international competitiveness and that those that disagree are conservative activists?!? This makes little sense to me." Then that is a weakness in his article, not my attempt to explain it.

6. "It is the substitution of your own opinion for the law." OK, that is a fine definition by me, but it doesn't mean that conservative judges don't do that.

You know I have high regard for you, especially in this area, but I confess I just don't find this particular post very persuasive.

a) "Judge Wilkinson says: “Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other.” The portion of this view is not in contention, I would guess."

Umm , , , I DO contest

b) "“activist [judges] believe that that the proper role of the [c]ourt is to assert independent positions in deciding cases, to review the actions of other branches vigorously, to be willing to strike down acts the [judge] believes are unconstitutional…”. Taken together, these definitions make sense, of course. This is where I suspect Judge Wilkinson is coming from, especially as he notes the “debate over the Affordable Care Act’s requirement that individuals buy health insurance” and the erosion of longstanding understanding (read precedent) of the Interstate Commerce Clause."

Ummm , , , ever since Marbury isn't it precisely the job of a judge to defend the Constitution? How is doing so "activist"?!? Of course stare decisis deserves some respect, but the original intent of the ICC deserves even more.

“It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.”

I find this paragraph to be the most specious of all. How on earth is limiting the Congress to the powers set to it in the Constitution constitute making the Congress “ineffectual”?!? This makes no sense to me at all. There are matters pertaining to the jurisdiction of the States, and there are matters that are properly federal. This is on purpose and it is a good thing to have the competition of fifty laboratories of democracy in action.

“He is arguing that activist decisions (overturning precedent and congressional actions) devolve the economic prowess of the country, but returning the economies to the states in an increasingly global environment.”

Again, it is NOT activist to insist upon the Constitution. PERIOD. Not sure of the meaning of the second half of the sentence (or even if it IS a sentence ) but I gather he thinks the courts should let the Congress slip its constitutional leashes because he thinks it makes for international competitiveness and that those that disagree are conservative activists?!? This makes little sense to me.

I will close by giving a concise definition of judicial activism: It is the substitution of your own opinion for the law.

'The Tinker case basically found that students can say what they want as long as the speech doesn't cause a disruption at school.' Certainly there are posts on Facebook that become disruptions in school.

The issue of privacy for a 12 year old on facebook is confounded by the requirement of facebook that she be 13 to join.

Same group (ACLU) took the other side (?) http://weblogs.sun-sentinel.com/news/politics/dcblog/2011/07/bondi_asks_court_to_not_consid.html regarding the blocking of Pediatricians from asking the child if there are firearms in the house. http://weblogs.sun-sentinel.com/news/politics/dcblog/2011/07/bondi_asks_court_to_not_consid.html A free speech right of the doctor?? Isn't a direct question from your own doctor similarly intimidating, though admittedly not 'armed with a Taser'.

Attorney General Ashcroft would an example of that with his prosecution in OR of the "Right to Die" laws.

The Holder DOJ has prosecuted federal marijuana laws to assert federal dominance over CA (and the laws of other states too) law. What is the interstate nexus of someone growing and smoking his own pot?

Wyoming is doing its best to escape federal firearms controls by developing firearms in a manner that is completely intrastate. Surprise! The Feds disapprove.

Attorney General Ashcroft would an example of that with his prosecution in OR of the "Right to Die" laws.

The Holder DOJ has prosecuted federal marijuana laws to assert federal dominance over CA (and the laws of other states too) law. What is the interstate nexus of someone growing and smoking his own pot?

If it is grown in California, consumed there and remains inside the state between those two points, none.

Wyoming is doing its best to escape federal firearms controls by developing firearms in a manner that is completely intrastate. Surprise! The Feds disapprove.

That kind of position should be backed up with an stated opinion of where the authority for federal jurisdiction comes from in the constitution. I suppose it is interstate commerce as much as growing tomatoes on your own property is.

So GM, what is the Constitutional basis for Federal law concerning someone growing and consuming his own marijuana?

Unless it's crossing state lines or international borders, I tend to think it's an issue to be left to the states. There has been an overreach with federal laws into areas rightly outside their constitutional duties.

"One of the tenets of academia is the encouragement and cultivation of a variety of ideas and opinions for open discussion and debate.

So imagine being shunned by academic institutions for writing a book on a figure unpopular with one political group, however large. Now imagine that some of these institutions are law schools and the figure in question is a United States Supreme Court Justice.

This is the quandary in which Scott Douglas Gerber has found himself over his entire academic career.“For good and bad, I’m forever linked with Clarence Thomas,” Gerber told a classroom full of USC Law students recently...."

"In this paper, I evaluate the arguments made by opponents of judicial elections. Focusing primarily on state supreme court elections (since that is the level of court where most studies have been conducted), though also discussing intermediate appellate courts and trial courts where appropriate, I evaluate the arguments of judicial reform advocates in light of empirical evidence. This paper presents a synthesis of the existing literature in this area, integrating the disparate findings by scholars into a single publication."

WASHINGTON — If the Obama administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn.

Mr. Filburn sued to overturn a 1938 federal law that told him how much wheat he could grow on his family farm and made him pay a penalty for every extra bushel.

The 1942 decision against him, Wickard v. Filburn, is the basis for the Supreme Court’s modern understanding of the scope of federal power. It is the contested ground on which the health care case has been fought in the lower courts and in the parties’ briefs. And it is likely to be crucial to the votes of Justices Anthony M. Kennedy and Antonin Scalia, who are widely seen as open to persuasion by either side.

“Wickard has become so foundational for generations of lawyers that any plausible understanding of the commerce power must come to terms with it,” said Bradley W. Joondeph, a law professor at Santa Clara University.

Both supporters and opponents of the health care law say the decision helps their side, and for three days starting next Monday, it will be at the center of the arguments before the Supreme Court about the law’s constitutionality.

To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.

Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.

“There’s a difference between being given an incentive and compulsion,” said Michael A. Carvin, a lawyer for the National Federation of Independent Business and several individuals challenging the law.

Mr. Filburn argued, as do opponents of the health care overhaul, that he was challenging a law that was not authorized by the Constitution, which allows Congress to regulate commerce “among the several states.” A decision against him, Mr. Filburn said, would move the nation toward a centralized government and “nullifications of all constitutional limitations.”

The Supreme Court’s ruling against him was unanimous.

“Even if appellee’s activity be local,” Justice Robert H. Jackson wrote, referring to Mr. Filburn’s farming, “and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”

The Obama administration says the decisions of millions of people to go without health insurance have a similarly significant effect on the national economy by raising other people’s insurance rates and forcing hospitals to pay for the emergency care of those who cannot afford it.

At the time, the reaction to the Filburn decision emphasized how much power it had granted the federal government.

“If the farmer who grows feed for consumption on his own farm competes with commerce, would not the housewife who makes herself a dress do so equally?” an editorial in The New York Times asked. “The net of the ruling, in short, seems to be that Congress can regulate every form of economic activity if it so decides.”

The editorial, like much commentary on the case, seemed to suppose that Mr. Filburn was a subsistence farmer. But in fact he sold milk and eggs to some 75 customers a day, and the wheat he fed to his livestock entered the stream of commerce in that sense, according to a history of the case by Jim Chen, the dean of the law school at the University of Louisville.

In the health care case, the administration has insisted that the overhaul law is a modest assertion of federal power in comparison to the law Mr. Filburn challenged. “The constitutional foundation for Congress’s action is considerably stronger” for the health care law than for the law that the Supreme Court endorsed in 1942, the administration said in a recent brief. The health care law, the brief said, merely “regulates the way in which the uninsured finance what they will consume in the market for health care services (in which they participate).”

Opponents of the law take the opposite view, using an analogy. It is true that the federal government may “regulate bootleggers because of their aggregate harm to the interstate liquor market,” Mr. Carvin wrote in a recent brief. But the government “may not conscript teetotalers merely because conditions in the liquor market would be improved if more people imbibed.”

“Yet the uninsured regulated by the mandate,” the brief went on, “are the teetotalers, not the bootleggers, of the health insurance market.”

For more than 50 years after ruling against Mr. Filburn, the Supreme Court did not strike down any federal laws on commerce clause grounds. But in a pair of 5-to-4 decisions, in 1995 and 2000, the court invalidated two laws, saying the activities that Congress had sought to address — guns near schools and violence against women — were local and noncommercial and thus beyond its power in regulating interstate commerce.

The decisions were part of a renewed interest in federalism associated with Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006.

Those two justices were still on the court in 2005 when it issued its last major commerce clause decision, Gonzales v. Raich. That decision was 6 to 3 in favor of upholding a federal law regulating home-grown medicinal marijuana.

Chief Justice Rehnquist and Justice O’Connor dissented, as well as Justice Clarence Thomas. But Justices Scalia and Kennedy, who had voted to strike down the laws at issue in the 1995 and 2000 cases, were in the majority.

“The similarities between this case and Wickard are striking,” Justice John Paul Stevens wrote for five members of the court, including Justice Kennedy. “Here, too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.”

“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote, in a passage that the Obama administration quoted prominently in a recent brief in the health care case.

Supporters of the health care law say the Raich decision shows that even completely local and noncommercial conduct may be addressed by the federal government as part of comprehensive economic regulation. Opponents counter that marijuana, like wheat, is a tangible commodity that is bought and sold, while a lack of insurance is not an economic activity.

The administration is probably assured of the votes of the court’s four more liberal members, and it needs one more to win the case. How Justices Kennedy and Scalia think about wheat, marijuana, health insurance and Roscoe Filburn may make all the difference.

WASHINGTON — Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system. The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers. “Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.” Justice Kennedy, who more often joins the court’s conservative wing in ideologically divided cases, was in this case in a coalition with the court’s four more liberal members. That alignment has sometimes arisen in recent years in cases that seemed to offend Justice Kennedy’s sense of fair play. The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.” Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations. Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.” Scholars agreed about its significance. “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision. In the context of trials, the Supreme Court has long established that defendants were entitled to new trials if they could show that incompetent work by their lawyers probably affected the outcome. The Supreme Court has also required lawyers to offer competent advice in urging defendants to give up their right to a trial by accepting a guilty plea. Those cases hinged on the right to a fair trial guaranteed by the Sixth Amendment. The cases decided Wednesday answered a harder question: What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain? Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, acknowledged that allowing the possibility of do-overs in cases involving foregone pleas followed by convictions presented all sorts of knotty problems. But he said the realities of American criminal justice required to the court to take action. Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94. “In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” Quoting from law review articles, Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.” One of the cases, Missouri v. Frye, No. 10-444, involved Galin E. Frye, who was charged with driving without a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence. But Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his client of the offer. After it expired, Mr. Frye pleaded guilty without a plea bargain, and a judge sentenced him to three years. A state appeals court reversed his conviction but said it did not have the power to order the state to reduce the charges against him. That left Mr. Frye roughly where he started, with the options of going to trial or pleading guilty without the benefit of a plea deal. Justice Kennedy wrote that Mr. Frye should have been allowed to try to prove that he would have accepted the original offer. But that was only the beginning of what Mr. Frye would have to show to get relief. He would also have to demonstrate, Justice Kennedy wrote, that prosecutors would not have later withdrawn the offer had he accepted it, as they were allowed to do under state law. Finally, Justice Kennedy went on, Mr. Frye would have to show that the court would have accepted the agreement. CONT.

Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.

It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble.

Consider a White House strategy memo that leaked this month, revealing that senior Administration officials are coordinating with liberal advocacy groups to pressure the Court. "Frame the Supreme Court oral arguments in terms of real people and real benefits that would be lost if the law were overturned," the memo notes, rather than "the individual responsibility piece of the law and the legal precedence [sic]." Those nonpolitical details are merely what "lawyers will be talking about."

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President Obama signing the health care bill at the White House on March 23, 2010..The White House is even organizing demonstrations during the proceedings, including a "'prayerful witness' encircling the Supreme Court." The executive branch is supposed to speak to the Court through the Solicitor General, not agitprop and crowds in the streets.

The Supreme Court will not be ruling about matters of partisan conviction, or the President's re-election campaign, or even about health care at all. The lawsuit filed by 26 states and the National Federation of Independent Business is about the outer boundaries of federal power and the architecture of the U.S. political system.

***The argument against the individual mandate—the requirement that everyone buy health insurance or pay a penalty—is carefully anchored in constitutional precedent and American history. The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.

This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly—though not without limit—and it has. It could even mandate that people use insurance to purchase the services of doctors and hospitals, because then it would be regulating market participation. But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.

This is another way of describing plenary police powers—regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.

The framers feared arbitrary and centralized power, so they designed the federalist system—which predates the Bill of Rights—to diffuse and limit power and to guarantee accountability. Upholding the ObamaCare mandate requires a vision on the Commerce Clause so broad that it would erase dual sovereignty and extend the new reach of federal general police powers into every sphere of what used to be individual autonomy.

These federalist protections have endured despite the shifting definition and scope of interstate commerce and activities that substantially affect it. The Commerce Clause was initially seen as a modest power, meant to eliminate the interstate tariffs that prevailed under the Articles of Confederation. James Madison noted in Federalist No. 45 that it was "an addition which few oppose, and from which no apprehensions are entertained." The Father of the Constitution also noted that the powers of the states are "numerous and infinite" while the federal government's are "few and defined."

That view changed in the New Deal era as the Supreme Court blessed the expansive powers of federal economic regulation understood today. A famous 1942 ruling, Wickard v. Filburn, held that Congress could regulate growing wheat for personal consumption because in the aggregate such farming would affect interstate wheat prices. The Court reaffirmed that precedent as recently as 2005, in Gonzales v. Raich, regarding homegrown marijuana.

The Court, however, has never held that the Commerce Clause is an ad hoc license for anything the government wants to do. In 1995, in Lopez, it gave the clause more definition by striking down a Congressional ban on carrying guns near schools, which didn't rise to the level of influencing interstate commerce. It did the same in 2000, in Morrison, about a federal violence against women statute.

A thread that runs through all these cases is that the Court has always required some limiting principle that is meaningful and can be enforced by the legal system. As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.

The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses—think of housing, or credit-card debt. Health costs are unpredictable—but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage—though then again, similar cost-shifting is the foundation of bankruptcy law.

The reality is that every decision not to buy some good or service has some effect on the interstate market for that good or service. The government is asserting that because there are ultimate economic consequences it has the power to control the most basic decisions about how people spend their own money in their day-to-day lives. The next stops on this outbound train could be mortgages, college tuition, credit, investment, saving for retirement, Treasurys, and who knows what else.

***Confronted with these concerns, the Administration has echoed Nancy Pelosi when she was asked if the individual mandate was constitutional: "Are you serious?" The political class, the Administration says, would never abuse police powers to create the proverbial broccoli mandate or force people to buy a U.S.-made car.

But who could have predicted that the government would pass a health plan mandate that is opposed by two of three voters? The argument is self-refuting, and it shows why upholding the rule of law and defending the structural checks and balances of the separation of powers is more vital than ever.

Related Video Editorial board member Joe Rago on the Supreme Court showdown over ObamaCare...Another Administration fallback is the Constitution's Necessary and Proper Clause, which says Congress can pass laws to execute its other powers. Yet the Court has never hesitated to strike down laws that are not based on an enumerated power even if they're part of an otherwise proper scheme. This clause isn't some ticket to justify inherently unconstitutional actions.

In this context, the Administration says the individual mandate is necessary so that the Affordable Care Act's other regulations "work." Those regulations make insurance more expensive. So the younger and healthier must buy insurance that they may not need or want to cross-subsidize the older and sicker who are likely to need costly care. But that doesn't make the other regulations more "effective." The individual mandate is meant to offset their intended financial effects.

***Some good-faith critics have also warned that overturning the law would amount to conservative "judicial activism," saying that the dispute is only political. This is reductive reasoning. Laws obey the Constitution or they don't. The courts ought to defer to the will of lawmakers who pass bills and the Presidents who sign them, except when those bills violate the founding document.

As for respect of the democratic process, there are plenty of ordinary, perfectly constitutional ways the Obama Democrats could have reformed health care and achieved the same result. They could have raised taxes to fund national health care or to make direct cross-subsidy transfers to sick people. They chose not to avail themselves of those options because they'd be politically unpopular. The individual mandate was in that sense a deliberate evasion of the accountability the Constitution's separation of powers is meant to protect.

Meanwhile, some on the right are treating this case as a libertarian seminar and rooting for the end of the New Deal precedents. But the Court need not abridge stare decisis and the plaintiffs are not asking it to do so. The Great Depression farmer in Wickard, Roscoe Filburn, was prohibited from growing wheat, and that ban, however unwise, could be reinstated today. Even during the New Deal the government never claimed that nonconsumers of wheat were affecting interstate wheat prices, or contemplated forcing everyone to buy wheat in order to do so.

The crux of the matter is that by arrogating to itself plenary police powers, the government crossed a line that Justice Anthony Kennedy drew in his Lopez concurrence. The "federal balance," he wrote, "is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scale too far."

***The constitutional questions the Affordable Care Act poses are great, novel and grave, as much today as they were when they were first posed in an op-ed on these pages by the Washington lawyers David Rivkin and Lee Casey on September 18, 2009. The appellate circuits are split, as are legal experts of all interpretative persuasions.

The Obama Administration and its allies are already planning to attack the Court's credibility and legitimacy if it overturns the Affordable Care Act. They will claim it is a purely political decision, but this should not sway the Justices any more than should the law's unpopularity with the public.

The stakes are much larger than one law or one President. It is not an exaggeration to say that the Supreme Court's answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.

A version of this article appeared Mar. 23, 2012, on page A14 in some U.S. editions of The Wall Street Journal, with the headline: Liberty and ObamaCare.

"Heading into the first of three days of Supreme Court arguments on Monday, the pavement occupied by the approximately 15 people in line Sunday morning was among the most coveted real estate in Washington. Tickets are scarce even for those connected to the case. And for everyone else, there’s the line.

It started with two people who were in line by 9:30 a.m. on Friday, waiting to score one of at least 60 seats made available to the general public for each day of arguments, said Kathy Arberg, a Supreme Court spokeswoman."

"When the Supreme Court begins to deliberate President Barack Obama’s signature health care law Monday, it will serve as a bitter reminder to Democrats of the blows leveled at their causes by the conservative Roberts court."

After it rules on the health-care debate and makes other momentous decisions this term, will the U.S. Supreme have sufficient stores of legitimacy to weather the inevitable backlash?

Legitimacy is for losers.

This spring, the U.S. Supreme Court will announce one of its most important decisions since its ruling in Bush v. Gore. The decision in the cases — all having to do with the constitutionality of President Obama’s Affordable Care Act — likely will have vast political consequences, perhaps well beyond health care itself. The court will also decide a number of other blockbuster cases in 2012, from the highly polarized Arizona immigration legislation (whether people can be stopped by the police and interrogated about their immigration status) to the question of whether 14-year-olds convicted of heinous crimes can be incarcerated for the rest of their lives without any possibility of parole.

If the smear of partisan decision-making tars the unelected U.S. Supreme Court after these decisions, the fundamental legitimacy of the institution may become precarious.

Tuesday's two hours of Supreme Court oral arguments on ObamaCare's individual mandate were rough-going for the government and its assertions of unlimited federal power. Several Justices are clearly taking seriously the Constitution's structural checks and balances that are intended to protect individual liberty.

Solicitor General Donald Verrilli faced aggressive questioning from Justices Anthony Kennedy and Antonin Scalia and Chief Justice John Roberts, the trio pegged as possible swing votes in favor of the mandate to buy insurance or pay a penalty. But they failed to elicit from Mr. Verrilli some limiting principle under the Commerce Clause that distinguishes a health plan mandate from any other purchase mandate that would be unconstitutional. The exchanges recalled the famous moment in Citizens United when the government claimed it could ban books to regulate political speech.

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The U.S. Supreme Court building in Washington, DC.."Can you create commerce in order to regulate it?" inquired Justice Kennedy, in the first question from the bench. To ask another way, does the Administration think it has plenary police powers to coerce individuals into economic transactions they would otherwise avoid?

Mr. Verrilli replied that health care is "unique," so Justice Samuel Alito brought up the "market for burial services" and asked if the government could mandate funeral insurance. After all, in the long run we are all dead and thus could transfer the costs of our deaths to the rest of society. (See nearby.)

Mr. Verrilli's error is that even if health care and health insurance were intrinsically different from all other markets—and they aren't—that fact is constitutionally irrelevant. Any federal exercise of police powers is untenable because the Constitution gives such powers to the states.

Justice Scalia bowed at this reality when he asked if having blue eyes would be a meaningful principle limiting the mandate. "That would indeed distinguish it from other situations," he said, but it would also be irrelevant because it would still be "going beyond what the system of enumerated powers allows the government to do."

Justice Scalia returned to this point when he said that apropos of the Necessary and Proper Clause, "in addition to being necessary, it has to be proper. And we've held in two cases that something that was reasonably adopted was not proper because it violated the sovereignty of the states, which was implicit in the constitutional structure."

Those core features of the American system were also stressed by Justice Kennedy. "The government is saying that the federal government has a duty to tell the individual citizen that it must act," he said, "and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way."

Related Video

Editorial board member Joe Rago takes apart the government's argument that the individual mandate is constitutional under the Commerce Clause. Plus, new polling shows that the law unpopular...Justice Kennedy later expressed some sympathy for the government's claim that young people who don't buy insurance are "very close" to affecting interstate commerce, but the key distinction is that proximity is not enough and can't be enforced by the courts. To regulate individuals at any point in their lives merely because they exist would still undermine the accountability and destroy the dual sovereignty that are the touchstones of his jurisprudence.

***As it happens, today the Court hears separate arguments on Medicaid, and the themes in that controversy dovetail with those of the individual mandate. Just as the Court may rule that commerce powers are broad but not unlimited, the same is true for the spending power.

Florida and 25 other states contend that ObamaCare's conversion of this voluntary program originally intended for the poor into all-purpose insurance for tens of millions of people is unconstitutional coercion. By commandeering the states and their taxpayers as de facto arms of the federal government, the Administration has abrogated the system of dual sovereignty as surely as it has by claiming police powers.

Medicaid was created in 1965 as a cooperative federal-state partnership. States could opt in, or not, and there were still holdouts as late as 1982. The program has expanded greatly over the years to the point that it is now the largest component of most state budgets. But Governors and legislatures have always had some measure of flexibility and independent control.

The Affordable Care Act obliterates this status quo and forces states to add everyone up to 138% of the poverty level to the rolls. The feds will pick up most of the new costs through 2020, though the states are still on the hook for between $20 billion and $43.2 billion in new costs, and much more into perpetuity.

The Administration says states can reject these huge new liabilities and leave new Medicaid altogether, even as it threatens them with the loss of all federal funds for doing so. But in practical terms that would be ruinous for the local hospitals, doctors, nursing homes and other providers that have adapted to Medicaid's size and depend on the program for revenue. The federal government is giving states a choice between an immediate economic calamity or a unilateral rewrite of the contracts they entered decades ago and eventual calamity as they absorb the new costs. The technical term is extortion.

The Court has always balanced federal and state power by distinguishing between pressure and coercion. ObamaCare crosses that line. The conditions of new Medicaid conscript the states into involuntary servitude to the federal government's policy goals, in this case national health care. They would no longer be independent and autonomous units within the federalist system but agents of Washington.

Judicial liberals have responded to the Medicaid challenge with the legal equivalent of rolling their eyes, much as they did with the individual mandate and the Commerce Clause. On the evidence of Tuesday's oral arguments, that may turn out to be a mistake as well.

"If President Obama’s health care bill is stricken by the Supreme Court, liberals will take it as evidence of judicial overreach, or at least that the court has shifted far to the right. One statistical method for analyzing the Supreme Court, in fact, already finds that the current court is the most conservative since at least the 1930s.

The method, called the Martin-Quinn Scores for the two scholars that developed it, Andrew D. Martin of the Washington University School of Law and Kevin M. Quinn of the Berkeley School of Law, estimates the court’s ideology by evaluating the combinations in which different justices vote with one another and how this changes over time. Their technique is similar to the well-regarded DW-Nominate method that is used to estimate the ideology of members of Congress based on their voting records."

"The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day." --Joseph Story

Obama the constitutional law professor needs to brush up on the subject

"Someone will have to remind President Obama the Supreme Court is a co-equal branch of government, part of a system of checks and balances designed to rein in precisely the kind of runaway government exhibited by his administration. Our community-organizer-in-chief has a different opinion. 'Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,' Obama said at a news conference with the leaders of Canada and Mexico. ... This is precisely what the Supreme Court is designed to do -- determine the constitutionality of laws passed by democratically elected legislatures and Congress. Surely the constitutional law professor has heard of Marbury v. Madison, the 1802 case that formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it 'unconstitutional.' Such an action is not unprecedented. ... By one estimate, the Supreme Court has struck down 53 laws between 1981 and 2005 alone. The president speaks of a law passed by a 'democratically elected Congress' yet it was a bill no one had read and which House Speaker Nancy Pelosi said we had to pass to find out what was in it. The fact is, most of the rules and regulations are written by unelected bureaucrats authorized by a bill that refers not to 'we the people' but to 'the secretary shall determine.' ... To say the bill passed 'a strong majority' of a democratically elected Congress is an overstatement. The bill passed the House with a vote of 219-212, a majority of seven, with 34 Democrats defecting. ... This isn't the first time President Obama has lectured the Supreme Court. In his State of the Union address on Jan. 27, 2010, he shamefully scolded the justices on national television for 'having reversed a century of law' in a ruling in which the court was protecting the freedom of political speech enshrined more than two centuries ago in the First Amendment. It will be poetic justice if in answering the administration's assertions on the constitutionality of ObamaCare, the court will echo Justice Samuel Alito's reply that night: 'Not true.'" --Investor's Business Daily

Do you have any words of wisdom for Mr. Obama?

"Can I tell you what I'm a tiny bit sick of hearing? Maybe you are too. Some version of this: 'Conservatives are hypocritical to root for the Supreme Court to overturn the health-care law. For years, conservatives have griped about interference by the courts. And now they're hoping that a handful of unelected, black-robed individuals will do their work for them?' Oh, come on: What we've objected to, all these years, is judicial activism -- judge-made law. The usurpation of the legislative role by judges. We have not, to my knowledge, objected to the striking down of unconstitutional laws. We are not hostile to a separation of powers." --columnist Jay Nordlinger

"The margin of passage has never been a factor in the Supreme Court's review of any law. That's simply not a part of American jurisprudence. In fact, if Mr. Obama believes what he says, he ought to be very satisfied with the validity of the Defense of Marriage Act, which passed in 1996 by a whopping 275 margin in the House and by 71 votes in the Senate." --

The Washington Times

"One of the greatest sins of Obamacare is actually that the president decided to pursue legislation that would fundamentally change the country even though he didn't have a strong majority for it in Congress. And 'judicial activism' generally refers to rulings based on emotion and political views instead of the Constitution and precedent. The judges' questions about the health care law went right to whether it violated the Constitution. There was no 'activism' on the order of, say, finding previously undiscovered meanings in the Constitution to justify a decision. To say that ruling against an unpopular law barely passed by Congress violates 'judicial restraint' would seem a strange new interpretation of the term." --columnist Keith Koffler

Prof. Thom Lambert of the University of Missouri Law School has responded with alarm to President Barack Obama's attack on the Supreme Court and the power of judicial review by recalling his own days as Obama's student at the University of Chicago.

Lambert, who writes for the "Truth on the Market" blog, not only studied under Obama, but also clerked for the federal judge who issued an order yesterday demanding that the Department of Justice clarify whether the government believed courts had the power to overturn constitutional laws.

Lambert wrote:

Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”: “[D]id he somehow not teach the historic case of Marbury v. Madison?”

I actually know the answer to that question. It’s no (well, technically yes…he didn’t). President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.

Lambert added: "Fortunately...[t]his morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff....I must say, I’m pretty dang proud of Judge Smith right now. And I’m really looking forward to reading that three-page, single-spaced letter."

Reading the transcript and listening to the audio of day 2 of the Obamacare argument, I was struck by the sheer intellectual laziness and complacency of Justice Breyer. To liken him to a rodeo clown would be to credit him with too much energy. Referring to the key New Deal Commerce Clause case of Wickard v. Filburn, Breyer asked, for example: “Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?”

Well, actually, no, Justice Breyer, they didn’t. “They” — Congress in an amendment to the Agricultural Adjustment Act of 1938 — limited the amount of wheat farmer Filburn could grow on his farm under a quota set for him by the geniuses in Washington (or penalized him for exceeding the quota). “They” didn’t make him go into the market and buy wheat for his cows. That’s the point — the point Randy Barnett has argued for the past few years. http://online.wsj.com/article/SB10001424052748703467304575383702986874016.html

The distinction between the case vaguely recalled by Justice Breyer and the one decided by the Supreme Court in the Wickard case might be the difference between a pass or a fail on a fairly graded Con law exam in law school. It goes to the heart of the Obamacare case. Justice Breyer has apparently been pursuing other intersts over the past few months.

As Jeffrey Anderson and Conn Carroll have observed http://www.weeklystandard.com/blogs/breyers-missteps_634797.html http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/breyers-unhinged-commerce-clause-ramblings/453011, this wasn’t necessarily Justice Breyer’s only laugh-out-loud moment during day 2 of the oral argument. And if Justice Breyer were not a party-line liberal, you would have heard about it.

Wickard v. Filburn was a huge case because it showed roughly speaking that government has unlimited powers in all matters construed as commerce. (Gonzales v. Raich followed and perhaps is worse.)

The central question coming out of Wickard Filburn (and Obamacare if affirmed): Does the existence of the power of congress to "regulate" in the constitution negate all the rest of the constitution such as basic rights of individual economic liberties like the freedom to grow food on your own property to feed your own chickens (or to choose your own health plan, what it will include and how to finance it).

Striking down Obamacare in its entirety does not require the overturning of any precedent, but with Dred Scott as an example, but the Supreme Court is not bound by precedent.

In the Wickard case, Mr. Filburn was restricted in growing wheat for his own chickens. That is outrageous in a free society! My humble opinion. (But still, he wasn't forced to buy wheat, he could have sold his chickens, quit farming, starved them, eaten them OR FED THEM SOMETHING ELSE.)

In Gonzales-Raich the Feds took power over your own ability to grow your own approved medicines and the Court affirmed that power. That is outrageous! MHO.

The guy (back to Filburn) has 23 acres and wants to grow wheat. Basically what congress codified and the Supreme Court upheld is the same system of limited production and price controls that OPEC exerted in the 1970s and ever since. That is the legitimate role of our government? That does not step on personal liberties? That is not a complete rejection of our free enterprise system? There were crops other than wheat available to plant in 1938-1941. Were they completely oblivious to the dangers of gluten?

Lets's look at what the Court said in Wickard which is the how we got to where we are today. Read the Court's ruling in Wickard in the context of both what the Founding Fathers would have envisioned for limits on government and what you the American libertarian of today should want as limits on the power of your government. I wrote in some of my own reaction to it:

“The decline in the export trade has left a large surplus in production which, in connection with an abnormally large supply of wheat and other grains in recent years, caused congestion in a number of markets; tied up railroad cars, and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion.“

THAT is a justification of government prohibiting a man from growing plants to feed for his own animals??

“Importing countries have taken measures to stimulate production and self-sufficiency.“

THAT is a justification for government control in America trumping individual economic liberty??

“It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.”

Government controlling prices in private markets is the end of a private market and the end of individual liberty IMHO.

“One of the primary purposes of the Act in question was to increase the market price of wheat ...”

It isn't a 'market price of wheat' if it was artificially through fascist government policies admittedly increased! Which Article authorized THAT power??

“The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. “

What? That trumps his right to grow crops and feed your own animals on his own agricultural private property to make a living and feed his family?

“We do not agree [that the Fifth Amendment requires that he be free from penalty for planting wheat and disposing of his crop as he sees fit]. In its effort to control total supply, the Government gave the farmer a choice which was, of course, designed to encourage cooperation and discourage noncooperation.”

'Control total supply' is a function one might expect from their government in Nazi Germany, not a 'regulatory power' in a constitutionally limited government Republic like ours...

None of this is REGULATION in any way that I know the term to mean. All of this popular and well-intended central control and free market ending manipulation was a neat idea – right up until it stepped on and destroyed anyone's individual liberties.

In all its excesses, none of it compelled a person to go out and buy a product he or she did not otherwise choose to purchase which is the present question before the Court in the latest expansion of limits on freedom and privacy case -healthcare.

Yet they they keep pointing to these egregious precedents to justify making a much larger new one.

Still unmentioned by the advocates is the affirmation of the individual mandate in the Japanese-American internment case. At least that was a perceived national security case, not a 'regulation' of commerce, though it certainly served to regulate their commerce.

The answer (IMHO) to this school of thought of 'constitutionally' expanding government powers without amendment is: not one more inch of encroachment against our individual economic liberties.

Thank you Crafty. You and I may agree and maybe no one here will argue the other side, but we still need to have this argument about what is right and wrong in a free society with the other side of the aisle until they are either defeated or join us.

President Obama in his correction/clarification said:

"We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal."

Crucial and revealing though is the transparent, all-powerful-government thinking that if it is only your economic freedoms that are being taken away, then it is no big deal. ! ! ! ? ? ? To them, commerce is defined not only as the freedom to buy, sell, and produce, but the freedom to decide what you will grow on your own property and how you will treat your own body to save your own life and your mothers' - and all that freedom is theirs, the congress and the federal government, and not yours - and your former rights have no business being protected by a Supreme Court or anyone else.

Unbelievable to me that this thinking reached either the White House or any member of the Supreme Court in this country!

That accumulated overreach was what started the tea party movement. The energy may have diffused into issues and candidates, but the argument remains and the fight needs to be joined.